BYRNE and CITY OF NEDLANDS
[2006] WASAT 77
•28 MARCH 2006
BYRNE and CITY OF NEDLANDS [2006] WASAT 77
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 77 | |
| LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) | |||
| Case No: | CC:2836/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | DR B DE VILLIERS (MEMBER) | 28/03/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application succeeds Orders made | ||
| B | |||
| PDF Version |
| Parties: | JOANNE BYRNE CITY OF NEDLANDS |
Catchwords: | Notice to remove pursuant to s 401 Finishing off of dividing wall Effect of vague building conditions Effect if neighbour accepts lesser condition |
Legislation: | Local Government (Miscellaneous Provisions) Act 1961(WA), s 401, s 401(1)(b), s 401(3) State Administrative Tribunal Act 2004 (WA), s 27(1), s 29(1), s 29(3), s 29(5), s 32, s 32(4), s 72(1) |
Case References: | Nil Nil |
Orders | 1.The application for review succeeds.,2.The decision by the City to issue the s 401 notice on 14 June 2005 is set aside and the notice is revoked. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) CITATION : BYRNE and CITY OF NEDLANDS [2006] WASAT 77 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 MARCH 2006 FILE NO/S : CC 2836 of 2005 BETWEEN : JOANNE BYRNE
- Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Notice to remove pursuant to s 401 - Finishing off of dividing wall - Effect of vague building conditions - Effect if neighbour accepts lesser condition
Legislation:
Local Government (Miscellaneous Provisions) Act 1961(WA), s 401, s 401(1)(b), s 401(3)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 29(1), s 29(3), s 29(5), s 32, s 32(4), s 72(1)
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Result:
Application succeeds
Orders made
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 Ms Byrne sought review of a decision by the City of Nedlands (City) to issue a notice for her to remove a dividing wall or to comply with conditions regarding the finishing off of the wall. Ms Byrne contended that her neighbour Ms Rae agreed to undertake render of her side of the wall. She also contended that the building conditions specified by the City were vague. The City conceded that the conditions were vague and also that they would accept non-compliance with a condition if the neighbour consents.
2 The Tribunal found that the application should succeed. Orders are made for the notice to be set aside.
Background
3 The application for review of a decision by the City to issue a s 401 Notice (notice) under the Local Government (Miscellaneous Provisions) Act1960 (WA) (LGMP Act) was lodged on 13 July 2005.
4 Member Spillane was initially nominated to constitute the Tribunal. After the written submissions had been received Member De Villiers was nominated to replace Mr Spillane to determine the application. I have taken into account all the evidence and submissions made by the parties in making the determination.
5 As a preliminary matter, the City consented that the notice against Mr Thackray be set aside since he is not, according to the certificate of title, the registered proprietor of the property. Ms Byrne is the sole proprietor. The application was also amended accordingly.
6 The application seeks to set aside the notice issued by the City on 14 June 2005 that requires Ms Byrne to remove the cause of an objection. The "cause of objection" is defined by the notice as the applicant's "failure to comply with plans and specifications" when she erected a boundary wall between 6 Garland Road and 7 Stephanie Street, Dalkeith.
7 Condition 17 of the undated Building Conditions that accompanied the Building Licence 238 dated 24 February 2000, required for "brickwork on or adjacent to boundary to be finished externally to the satisfaction of the City's Manager of Building Services". Condition 17 did not contain any other criteria that could be used as a benchmark to
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- determine what the City envisaged to be the satisfactory standard of finishing - the decision was left entirely to the discretion of the Manager.
8 The particulars of "non-compliance" were described as follows in the notice:
"The Building is not in compliance with the plans and specifications approved by the City….Condition 17 of building licence 355/00 has not been complied with in regard to the finish of the wall. A satisfactory finish to the eastern face of the boundary wall is a sand, lime cream cement and water mix applied to the wall by the bagging method."
9 The applicant listed several grounds upon which she contends the notice should be set aside:
(a) It is unreasonable due to vagueness since the decision as to what is "satisfactory" rests solely with the Manager.
(b) The applicant and their neighbour had a verbal agreement that the latter would finish her side of the wall.
(c) The approved plans for the renovation indicated with an arrow that only the applicant's side of the fence would be finished by her.
(d) It is unreasonable to commence with the action more than five and a half years after the wall had been completed.
10 The parties met on 31 August 2005 to discuss a possible negotiated settlement to the application. The attempt failed mainly for two reasons as set out in the letter of Mr Burke, dated 6 September 2005:
(a) disagreement as to what is meant by "reasonable" or "satisfactory" standard of finishing of the wall; and
(b) who would assume responsibility for finishing the wall in light of the purported agreement between the applicant and her neighbour.
Legal framework for review
11 Section 72(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) enables an aggrieved person to seek a review from the Tribunal of a reviewable decision. A "reviewable decision" includes a decision to issue the notice pursuant to s 401(1)(b) of the LGMP Act. Section 401(3) of the LGMP Act enables a person who is dissatisfied with
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- an order to pull down a structure to apply to the Tribunal for a review of the decision. The Tribunal has in accordance with s 29(1) of the SAT Act the same jurisdiction, functions and discretions as those of the decision-maker – in this case the City and its delegated officer the Manager, Building Services.
12 The Tribunal may, pursuant to s 27(1) of the SAT Act, take into account any additional or new information that was not at the disposal of the City at the time when the decision was made. The review hearing is therefore in the words of the SAT Act (s 27(1)) "de novo" and is not confined to the matters and information that were before the decision-maker at the time of the decision.
13 The Tribunal is obliged to conduct the review in accordance with the substantial merits of the case without being bound by the rules of evidence (s 32, SAT Act). The Tribunal may inform itself on any matter as it sees fit (s 32(4)).
14 The powers of Tribunal according to s 29(3) of the SAT Act are to:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision,
and to make appropriate orders.
Consideration
16 The applicant raised several grounds on which she contends the decision to issue the notice should be set aside and the notice revoked. A key question for the Tribunal to consider on review relates to the discretion that vests in the hands of the decision-maker, prior to it issuing a notice and what criteria the Tribunal should take into account in the exercise of such discretion on review. The Tribunal is on review placed in the position of the decision-maker.
17 Building Condition 17 refers to the wall being finished "to the satisfaction" of the Manager, Building Services. No further standards or criteria are set out as to what should inform the "satisfaction" of the Manager. Building Condition 22 requires that the applicant must comply
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- with notations, if any, marked in red on the approved plans. No notations were made in regard to the wall.
18 The notice contains an inconsistency. On the one hand it says in par D that the wall "is not in compliance with the plans and specifications approved by the City...". It then goes on to list the particulars of non-compliance in Item 3 to the notice and concludes that "a satisfactory finish to the eastern face of the boundary wall is a sand, lime cream cement and water mix applied to the wall by the bagging method". The inconsistency is, in essence, that the detail of non-compliance as set out in Item 3 of the notice cannot be found in the approved building plans or in the conditions attached to the building licence.
19 Although the steps to comply with the building licence are listed in Item 3 of the notice, these requirements were:
(a) not enclosed with the building licence; and
(b) were not made available to the applicant at the time of issuing of the licence.
20 Unless the City can point out where a requirement, which was set in the building licence or in the approved plans, is not adhered to, it cannot add a condition for compliance when the notice is issued. It is therefore incumbent on the City to demonstrate that the wall is not in compliance with the "plans and specifications approved by the City….". (Emphasis added)
21 The revised building plan approved by the City on 2 February 2000 had arrows pointed to the western side of the eastern wall (the side that faces the house of the applicant) with the inscription "new brick/render wall. 1 800 above ground level". No indication is given on the plans as to what type of finishing would occur on the other side of the wall. There is also no mention on the plan of the description of a "satisfactory finish" as appears in Item 3 of the notice. There are no notations marked in red to the approved plan to signify conditions of approval.
22 Building Licence 238 issued on 24 February 2000 stipulated that the building work must be carried out in accordance with the "approved plans, drawings and specifications" and "conditions attached to the licence". Neither the building plan nor the conditions contained the specifications for a satisfactory finish as set out in Item 3 of the notice.
23 In her evidence at the directions hearing of 1 December 2005, Ms Byrne pointed to the building plan and emphasised that "no
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- information relating to the other side of the wall" was given. This according to Ms Byrne was due to the fact that their neighbour, Ms Rae, had undertaken to complete her side (eastern side of the wall) of the wall once she had finalised her own building and home renovation plans. At the time when Ms Byrne and Ms Rae discussed the plans, it was allegedly envisaged that Ms Rae might use the dividing wall as a parapet wall for purposes of her renovations.
24 Ms Byrne further contends that the standard of finish as specified in the notice was not enclosed as a condition to the building licence but was only added after the complaint had been received. Ms Byrne therefore concludes that the requirement "to the satisfaction" of the Manager is vague and cannot be enforced and that the City cannot add conditions after the licence and conditions had been issued.
25 The City confirmed in their reasons for decision that "there was no specific expression about the criteria on which to assess satisfaction but clearly the wall was not homogenous in texture with a substantial proportion of the mortar joints not full and some of the bricks noticeably broken or damaged". The City did not explain why a more detailed specification as to the required standard of completion of the wall was not included in the conditions. The City also did not offer a satisfactory explanation of the basis whereon it could include conditions in the notice that were not part of the approved plans or conditions attached to the building licence.
26 In its statement of issues, facts and contentions the City further acknowledged that the Manager "could consider alternative means of establishing his satisfaction with the finish of the wall namely if the adjoining affected owner at 7 Stephanie Street Dalkeith confirmed satisfaction with the appearance of the wall, and in consideration of any complaints from the general community. There is no evidence of consent from the adjoining owner…". The Manager could therefore accept a less than satisfactory finishing (albeit undefined what "satisfactory" means) if the neighbour agrees with the finishing or if there are no other complaints from other members of the community.
27 As already referred to above, Ms Byrne's evidence is that she entered into a verbal agreement with Ms Rae to the effect that Ms Byrne would erect the wall at her cost but that Ms Rae would be responsible to finish her side of the wall, once she had completed her own plans for renovation. According to the evidence of Ms Byrne, the reason for this arrangement was that Ms Rae experienced some financial difficulties at the time of
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- construction of the wall and could not contribute to the works. Ms Byrne was eager to get the work underway and hence the purported agreement between them. Ms Byrne contends that it was anticipated at the time of their discussions by Ms Rae, that she might use the dividing wall as a parapet wall when she undertook renovations in future. As good neighbours they did not reduce the agreement to writing since there was a common understanding as to what would happen.
28 Since the completion of the wall, Ms Rae had also commenced with and finalised her garage extensions. The dividing wall has not been used as a parapet wall. Photographs tendered by the City show that a new wall had been erected by Ms Rae approximately 1 metre from the dividing wall.
29 Ms Rae in her letter of complaint to the City, dated 5 October 2004, contended that Ms Byrne gave a verbal assurance at the time of construction that she would cause both sides of the wall to be rendered and that the "agreement" had not be honoured. She disputes the existence of an agreement whereby she would be responsible for the finishing of her side of the wall. She lodged a complaint and photographs in support to show that the eastern side of the wall - facing the residence of Ms Rae - has not been rendered.
30 The origin of the dispute arises from the vague manner in which Building Condition 17 of the building conditions was formulated by the City. To add to the uncertainty, the City says it would accept a lower standard as those set out in the building conditions if the neighbour concurs or if there were no complaints received from the community. According to the City, there is no evidence that Ms Rae concurred with the purported agreement that each neighbour would be responsible to finish their side of the wall.
31 It is obvious that if consent was given by Ms Rae to accept a lesser standard of finish to the wall, the consent cannot be retracted or varied by her or by a new proprietor. What is done, is done. Any other outcome would be utterly unfair to Ms Byrne and present her with an ongoing uncertainty as to who is responsible to finish the wall.
32 This brings us to the purported agreement between Ms Byrne and Ms Rae that each of them would be responsible to finish off their side of the wall.
33 The Tribunal accepts the evidence of Ms Byrne that she and Ms Rae had entered into a verbal agreement whereby each party would be
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- responsible for finishing off their side of the wall. Our reasons for accepting the evidence of Ms Byrne are as follows:
(a) The understanding whereby Ms Byrne would construct the wall and that each neighbour is responsible to render their side is credible, plausible and consistent with the other evidence and the events that followed the completion of the wall.
(b) There is insufficient evidence to rebut the evidence that Ms Rae had anticipated at the time to use the dividing wall as a parapet wall. The fact that Ms Rae decided after the completion of the wall to construct a separate garage wall does not change the circumstances when the agreement was concluded.
(c) The approved plan shows that only the one side of the wall would be rendered. This is consistent with the building approval and conditions attached thereto.
(d) There was no objection to the building plan by Ms Rae.
(e) Although the wall was completed in late 2000 it took Ms Rae a substantial period of time to lodge a complaint. If she had immediate concerns or if she and Ms Byrne had an agreement that Ms Byrne would render both sides of the wall, one would have expected Ms Rae to lodge a complaint as soon as the builders vacated the premises.
(f) It is probable that the dispute between Ms Byrne and Ms Rae regarding another boundary dispute as set out in the statement of issues, facts and contentions submitted by Ms Byrne, may have contributed to Ms Rae lodging this complaint.
34 The Tribunal finds that pursuant to the discretion it has under s 401 of the LGMP Act, the notice dated 14 June 2005 should be set aside on the grounds of the verbal agreement that existed between Ms Byrne and Ms Rae to the effect that each neighbour would be responsible for the finishing off of their side of the dividing wall.
35 The Tribunal also finds that the Building Condition 17 issued by the City was too vague and uncertain to have effect or to be enforced. Had Building Condition 17 included the words "a satisfactory finish to the
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- eastern face of the boundary wall is a sand, lime cream cement and water mix applied to the wall by the bagging method" or words to that effect, it would have been sufficiently clear and precise to be given effect. However, the Tribunal finds that the wall complies with the approved plans and specifications set out in the Building Licence and Building Conditions.
Orders
1. The application for review succeeds.
2. The decision by the City to issue the s 401 notice on 14 June 2005 is set aside and the notice is revoked.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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